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Consent Orders - do I need a lawyer?

Family Law Consent Orders

Consent Order

An order accepted and agreed between the parties, which does not necessarily require the parties to litigate in Court.

Consent Orders are Court Orders made by agreement between the parties and are a legally binding document commonly used in Family Law proceedings for property settlement and/or children’s issues.

If two parties can reach an agreement for a property settlement and/or children’s issues prior to going to court, they can have that agreement drawn up into a Consent Order.  Consent Orders can also be used to vary or discharge current Court Orders or to finalise a court case before trial.

By finalising the agreement into a Consent Order, the parties then have the benefit of being a party to a legally binding document, without necessarily having had to issue court proceedings or engage in litigation.

Consent Orders are a more cost effective and time friendly option than court proceedings. They provide each party with an opportunity to negotiate an outcome without necessarily having the pressure of having court proceedings ongoing in the background.

In an attempt to save costs, often parties want to know whether they can draw up a legal agreement, such as a Consent Order, themselves. This begs the question, is it necessary for the parties to have legal representatives when dealing with Consent Orders?

The parties are able to negotiate the terms of the agreement amongst themselves without assistance from a lawyer and the documents don’t need to be signed in the presence of a lawyer.

If the parties do not however receive independent legal advice prior to signing the Consent Orders then they place themselves in serious risk of entering an agreement which they do not fully understand and consequently their legal rights and entitlements may not be fully exercised.

Consent Orders are legally binding documents which can have a profound impact.

While it is not a requirement for the parties to receive independent legal advice prior to signing Consent Orders, it would be remiss of them to not seek advice from a lawyer experienced in Family Law.

Consent Orders are legally binding documents which can have a profound impact. If the terms of the agreement are not properly understood by a party, the effect can be catastrophic.

Here’s a couple of examples of “self-drafted” Consent Orders where things can go wrong.

Property Settlement

The husband and wife agree to draft the Consent Orders themselves and as a part of the agreement the former matrimonial home is to be sold with the wife to receive 60% of the net proceeds of sale and the husband to receive 40% of the net proceeds of sale.

The wife drafts the agreement and mistakenly writes in the documents that the husband is to receive 60% of the net proceeds of sale and she is to receive 40% of the net proceeds of sale.

The mistake is not picked up by either party prior to signing the documents. The documents are then signed, sent to the Court and sealed. There is no written evidence between the husband and wife that they agreed to a 60:40 split of the net proceeds of the sale of the former matrimonial home in the wife’s favour.

The wife now wants to amend the sealed Consent Orders. The husband refuses and states that the agreement was always that he was to receive 60%. The wife is now in a predicament where there is a significant mistake in the Consent Orders, yet there is very little evidence to prove that a mistake was actually made.

Children’s Issues

The mother and father agree to draft the Consent Orders themselves with respect to the care arrangements for their child. The agreement does not include any provisions for Mother’s Day, Father’s Day and special occasions such as Christmas and Birthdays.

After the Consent Orders are sealed by the Court the mother seeks to have the care of the child on Mother’s Day when the child would otherwise be in the care of the father.

As there are no provisions relating to Mother’s Day in the Consent Orders the father refuses to give the mother care on this very special day.

The mother now realises that she is subject to Consent Orders which do not cover imperative issues such as special occasions.

When considering entering into a Consent Order, it is paramount that each party understands the effect of the document from a legal perspective.

It is clear that the parties would be taking a significant risk in not engaging respective legal representatives as a lawyer can interpret the meaning of the agreement and advise on the consequences from a legal perspective. In some cases Consent Orders can be overturned by the Court however this process is time consuming, costly and highly stressful.

It is therefore sensible to seek the advice of a legal representative prior to signing a Consent Order.

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to Australian Federal legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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